Can AI work in harmony with HR and employment law?by
Within HR and employment law AI will change the way we work, but it will not eliminate the need for expert, professional advice on specialist or complex issues.
A lot has been written about the use of artificial intelligence (AI) in the workplace over recent years and cynics might take the view that much of that has been produced using tools such as ChatGPT. It would seem that many people form one of two opinions – either AI will revolutionise everything and should be applied at any given opportunity, or millions of jobs will be lost and this is the beginning of the end.
The reality is probably somewhere in between the two. Of course, AI will change how we all work, and it will certainly change how we provide certain professional services, including accountancy, HR and employment law advice. These sectors, like many others, were of course changed with the introduction of the internet and email to the workplace. Clients and employees suddenly had information readily available to them and could send and receive it without delay virtually any time of day.
Expert advice still required
The same is true now, with accountancy clients frequently using online tools, such as CEST in relation to the application of IR35, or the variety of programs available to assist with their business finances and reporting. All of these can change the nature of the services that accountants and firms are being asked to provide. But this does not eliminate the need for expert, professional advice on specialist or complex issues, or the application of discretion as to what might be best for an individual client, or their business.
The same is true within HR and employment law. Not only does AI change the way we work, but it also has the potential to change aspects of the employment relationship within any organisation, including accounting businesses.
AI systems are increasingly used in recruitment and redundancy selection procedures, for work allocation, and for monitoring conduct, attendance and performance. Almost inevitably, many people have heard of incidents where these tools have gone wrong – such as cases involving Amazon and Uber, where the data and tools used actually gave rise to claims of discrimination against those companies. Yet rather than indicate that all AI is dangerous or should not be used, these cases demonstrate how AI can best be applied cautiously and with expert human input to avoid any terrible consequences.
Use with restraint
It is widely accepted that employee monitoring tools can prove to be very useful to any employer. They cut the time taken to capture and record information relating to holiday, training, absence, performance and many other aspects of the employment relationship. These tools can also then use the data to provide insights and alerts to accountancy managers so that they might be prompted to take appropriate action in respect of an employee.
But even these benefits must be used with some restraint. Monitoring employees and this information presents issues relating to data protection. Employers must ask themselves why they need the data, are they capturing only what they need, and could they achieve the same results in any other way? Current data protection law also provides a very sensible check on the use of AI in HR, in that it provides a right to any employee not to be subject to automated decisions. It reinforces the view that AI should be used in conjunction with expert, professional human input.
Concept of reasonableness
This is particularly true in what is the most challenging area for any employer or HR professional – the potential dismissal of an employee.
Key to the decision to dismiss an employee is the concept of reasonableness. In any claim for unfair dismissal, an employer must show that the decision to dismiss was reasonable in all of the circumstances. This means that the employer must demonstrate an understanding and awareness of those circumstances and the options open to them.
So AI might alert an employer that an individual has had very high absence over the past quarter, and has not been performing to the standard expected, but this does not mean that the employee should automatically be sanctioned or dismissed. On that information alone, the employer does not know the reason why that individual has been off, or why they might be struggling with their work. This could be the result of difficulties in their personal life, or a physical or mental illness, or it could even be something easily fixed, such as issues with a lack of training.
It may be that AI could help to address and resolve those issues. However, the vital point is that in this area at least, the fundamentals of HR and employment law remain unchanged. All accounting employers must still follow a process to engage with their employees so as to fully understand any given situation, explore all the options and apply their discretion, always, reasonably.
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Owen trained and qualified in 2008 and worked in Cardiff and the City of London before returning to Oxfordshire to join Crossland Employment Solicitors in 2013.
Owen advises on all aspects of employment law, from day-to-day HR issues including disciplinary and grievance matters, to major commercial transactions involving transfers,...